Defamation Plaintiffs Must Plead Exact Words and Non-Privileged Publication

The elements of a defamation claim in Virginia are (1) publication, (2) of an actionable statement and (3) the requisite level of intent. A statement regarding a person’s professionalism may constitute defamation per se (meaning the plaintiff need not prove actual damage to reputation) if it implies that the person is unfit to perform the duties of his job, lacks integrity in performing those duties, or if it would tend to “prejudice” the plaintiff in his profession. Fairfax Judge Robert J. Smith, in a detailed opinion, recently made clear that to survive demurrer, a plaintiff must also state the exact words alleged to be defamatory, and must show that the defamation occurred in a non-privileged setting.

In Tomlin v. IBM, three former IBM employees brought defamation claims against IBM and five individuals. IBM received an anonymous letter alleging that Ms. Tomlin acted unethically by hiring her brother, Mr. Tomlin. After an investigation, IBM terminated the employees. Plaintiffs claimed that IBM and the individual defendants made the following false and defamatory statements to IBM colleagues: that Ms. Tomlin acted unethically in hiring her brother and that she and Mr. Tomlin and plaintiff Williams conspired to cover up the unethical hiring; that Mr. Tomlin falsely claimed to have certain skills in his job application and did not meet the minimum qualifications for his consulting position; and that Mr. Williams submitted a fraudulent hiring form regarding Mr. Tomlin. Plaintiffs alleged that defendant Ms. Minton-Package told IBM employees that Ms. Tomlin was fired because she had hired her brother and tried to “cover it up.”

Although a plaintiff does not need to plead specifics such as the identity of the speaker and other details surrounding purportedly defamatory statements, the complaint must contain the exact words spoken or written. Tomlin’s complaint, however, merely alleged the general nature of the defamatory statements; only the statements imputed to Ms. Minton-IBM_mouse.jpgPackage contained exact words. The court found that the plaintiffs failed to plead the defamatory statements with sufficient particularity except as to Ms. Minton-Package, and it proceeded to examine publication only as to her.

The publication requirement contemplates publication to a third party. An intra-corporate communication heard solely by those who have the duty or authority to receive the information has not been “published” for purposes of a defamation claim. Moreover, internal corporate communications are usually deemed privileged when made in the ordinary course of business. In Tomlin, the plaintiffs contended that Ms. Minton-Package communicated the allegedly defamatory statements to other employees at IBM. Plaintiffs did not claim that those employees did not have a duty or authority to receive the communication and therefore failed to establish publication or overcome the privilege.

The court dismissed plaintiffs’ defamation claims for failure to plead any exact words constituting the allegedly defamatory statements by defendants other than Ms. Minton-Package, and it dismissed the claims against Ms. Minton-Package for failure to sufficiently allege publication. However, the court granted plaintiffs leave to amend their complaint.

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